Rai Aaska and Another v. Torture Claims Appeal Board and Another

HCAL 1105/2018

[2021] HKCFI 1043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1105 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicants in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 38-year-old national of India who last arrived in Hong Kong on 26 August 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 26 August 2015 or within 14 days of its early termination, but when her contact was prematurely terminated on 31 December 2014, she did not depart and instead overstayed in Hong Kong until 6 October 2015 when she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by her former boyfriend for having a new relationship with another man in Hong Kong, and upon giving birth to a son out of that relationship on 13 April 2016, she also raised a similar claim for her son, the 2^nd Applicant (“A2”) on the same basis which were jointly assessed together.

2.A1 was born as a Gurkhas and raised in Darjeeling, West Bengal, India where she dated her former boyfriend in 2008, but soon discovered that he was jealous and abusive towards her, and by 2010 she wanted to end their relationship but he refused and threatened to kill her if she dared to do so.

3.To avoid his further abuses A1 in 2011 came to work in Hong Kong as a foreign domestic helper, and in 2012 upon hearing that her former boyfriend had left India for work, she thought it was safe to return home which she did in 2012, but when she later heard that he was returning to India, she therefore departed India again in August 2013 for Hong Kong to resume her former line of employment.

4.During her stay in Hong Kong A1 formed a new relationship with another India man who was also a non-refoulement claimant, and when she later became pregnant with A2, her employment was prematurely terminated on 31 December 2014, but she did not depart because she was told by her family in India that her former boyfriend was furious about her new relationship and had threatened to kill her and her child, and so she overstayed in Hong Kong and subsequently sought non-refoulement protection for herself and A2,  for which she completed a Non-refoulement Claim Form (“NCF”) on 25 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 7 November 2016 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that there will be any real and substantial risk of them being harmed or killed by A1’s former boyfriend upon their return to India due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no reliable evidence of any real intention on his part to harm or kill them especially after their relationship had ended more than 10 years ago, that it was in any event a private personal dispute between them without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move safely with A2 and her present partner to other areas of India away from her home district in large cities such as Delhi where it would be difficult if not impossible for her former boyfriend to locate them.

7.On 21 November 2016 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 8 March 2018 before the Board during which A1 gave evidence and answered questions put to her by the Adjudicator for the Board.  On 7 June 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found A1’s claimed fear of harm to her and A2 from her former boyfriend just a bare assertion without any corroborating evidence in support, that in any event it was a private personal dispute between them without any official involvement that state/police protection would be available to her and A2 upon their return to India, and that with the support and responsibility from her present boyfriend and father of A2 that reasonable internal relocation would be available for them to move safely to other areas away from her home district without any risk of being located by A1’s former boyfriend that the Applicants’ claim failed on all applicable grounds.   

9.On 15 June 2018 the Applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date she just broadly stated that their decisions are not correct as they failed to consider “the ground realities in India before reaching at their decisions”, as “the references they made for reaching their decision don’t show the actual realities in India” but without providing any details or particulars or elaborations how they were so, nor did she do so at the hearing of their application or put forward any other ground for their intended challenge.  As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Director or the Board or in their decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

10.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 

11.In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.I am of course mindful of the fact that A2 is a 5-year-old minor now and not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, and that it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in the appeal before the Board, when the proper approach of which have recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

13.In the present case, as noted above, the claim of A2 was premised fundamentally on his mother’s claim of risk of harm from a single individual of which both the Director and the Board had correctly found even on A1’s own case as a localized one, and that in the consideration of the option of internal relocation available to both of them, the Board did state that it was aware that the appeal related to a woman and child who may be vulnerable in India (see [59] – [63] of the decision) but found that with the system in place in India and the fact that they would have the support of A1’s partner who is also A2’s father who would provide greater support and security for them to safely relocate to many suitable communities of Indian Gurkhas in India without any risk of being located by A1’s former boyfriend as an ordinary citizen without any particular resources to locate them even assuming that he would still have any adverse interest in them after all these years.            

14.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim, nor do I see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to A2 that had not been advanced to the Board or considered by it due to lack of legal representation for A2 before the Board.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review including those of A2 as a minor child, for whom I will treat the absence of legal representation in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review.  Accordingly, I refuse their leave application.

Dated the 16^th day of April 2021.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1